Reassessing jury service citizenship requirements.

• Author: Lombardi, Mary

INTRODUCTION

The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." (1) While the Sixth Amendment clearly establishes the right to trial by jury in criminal proceedings, (2) the amendment is less clear about the makeup of a jury. Over the years, courts have repeatedly addressed the issues of how a jury is composed and who is allowed, or entitled, to sit on a jury.

As a result of this attention, the composition of juries has evolved greatly since the writing of the Constitution. For example, size requirements have changed over the years, (3) as has the use of peremptory challenges. (4) The representativeness of juries also has changed dramatically on account of court holdings that exclusions of particular groups of individuals are unconstitutional. Groups that historically have been excluded from jury service include African Americans, women, and persons of Mexican descent. The Supreme Court has held that these exclusions are unconstitutional under either the Sixth or Fourteenth Amendments. (5)

While the diversity of juries has increased in many respects, one group remains regularly prohibited from jury service--non-citizens. Eligibility requirements for both federal jury service (6) and state jury service (7) mandate U.S. citizenship, and constitutional challenges to statutes prohibiting non-citizens from jury service have been unsuccessful. (8) These restrictions affect the roughly 22 million non-citizens living in the United States. (9) Despite these limitations, occasionally a non-citizen will sit on a jury rendering a verdict. In such a situation, a court will not overturn a verdict on the grounds that the jury was not comprised solely of U.S. citizens (10) because a defendant does not have a constitutional right to a jury composed entirely of U.S. citizens. (11) Therefore, jury service by non-citizens, or at least certain non-citizens, is a possibility.

Although this Note does not directly consider whether courts should find non-citizen exclusions from jury service unconstitutional, it does address whether non-citizens should be allowed to serve on juries in light of assumptions made about non-citizens and the jury's purposes. Discussions of assumptions about certain groups and jury roles appear frequently in cases involving exclusions of groups from jury service, whether the groups consist of non-citizens or other historically excluded persons. These issues are also relevant to the policy decision of whether to allow non-citizens to sit on juries.

Part I of this Note discusses the historical and legal background of jury service by non-citizens. Around the time of this country's formation, non-citizens were allowed to sit on juries, (12) but today non-citizens are widely prohibited from serving as jurors. (13) Courts have repeatedly denied constitutional challenges, to exclusions of non-citizens from jury service, whether brought under the Sixth or Fourteenth Amendments. (14) Despite statutory prohibitions of non-citizens from jury service, courts have held that it is not unconstitutional for a non-citizen to sit on a jury rendering a verdict. (15)

Part II discusses the three traditional roles of the jury. For the defendant, the jury provides protection against arbitrary and oppressive government. (16) For the community, the jury instills public confidence in the criminal justice system. (17) For the jurors themselves, service on the jury presents opportunities for democratic self-government and civic education. (18) Part II explores the implications of possible jury service by non-citizens with respect to each role.

Part III summarizes the analysis in Part II and looks for an answer to the larger question of whether non-citizens should serve on juries. While jury service by non-citizens would not diminish the ability of the jury to fulfill any of its roles, those roles also do not uniformly require non-citizens to be eligible for jury service. However, in certain communities, the ability of the jury to represent the common sense of the community--an essential component of the jury's role for the defendant--could be enhanced by the inclusion of legal permanent residents in the jury pool.

1. THE HISTORICAL AND LEGAL BACKGROUND OF NON-CITIZEN JURY SERVICE

   Jury service has not always been restricted to citizens. In England in 1353, the privilege of a jury made up of an equal number of citizens and non-citizens, or a jury de medietate linguae, for cases involving a non-citizen party was granted by statute to non-citizen merchants. (19) Another statute in 1354 extended the privilege to all non-citizens. (20) The presence of non-citizens on English juries served the dual functions of "improv[ing] the fact-finding capability of the jury, but also ... improv[ing] upon its sense of fairness by acting as a check against prejudice." (21) American courts in the late eighteenth and early nineteenth centuries followed England in providing non-citizens on trial a jury de medietate linguae, at least into the first half of the nineteenth century. (22) Judges in both state and federal courts granted juries de medietate linguae upon request of non-citizens who had been charged with crimes. (23)

   The practice of granting juries de medietate linguae did not persist for very long, as state courts began to find that a non-citizen's right to a jury de medietate linguae no longer existed. In 1825, the North Carolina Supreme Court in State v. Antonio (24) affirmed the denial of a non-citizen prisoner's request for a jury de medietate linguae in a two-to-one decision, with all judges writing separately. Judge Hall affirmed the denial after finding that the jury de medietate linguae in England was based on the commercial policy of encouraging non-citizen merchants to trade in England rather than on principles of criminal law. (25) Judge Henderson concurred, stating that since the non-citizens who settle in the United States as colonists intend to stay, their interests are not distinct from those of the other colonists; thus, they do not require non-citizen representation on their jury. (26) In subsequent cases, other state courts also denied requests for juries de medietate linguae, finding that state statutes prohibiting non-citizens from being jurors had abolished any fight to such a jury that may have previously existed. (27) In Kentucky, even though a statute still provided for a jury de medietate linguae, the supreme court affirmed the trial court's denial of a non-citizen's request for such a jury because the trial court had discretion in whether to grant one as a privilege. (28) By 1936, the U.S. Supreme Court had also found that any past right to a jury de medietate linguae no longer existed. (29)

   Not only did non-citizens in this country lose their right to, or privilege of, a mixed jury composed of an equal number of non-citizens and citizens, but eventually non-citizens were prohibited from sitting on juries entirely. Some states had statutes restricting jury service to U.S. citizens beginning in the nineteenth century. (30) Today most, if not all, states make citizenship a requirement or qualification for jury service. (31) Most states explicitly limit jury service to citizens in their juror qualification statutes. (32) A few states have juror qualification statutes providing that jurors must have the qualifications of electors, and the elector qualification statutes require citizenship. (33) North Carolina, while requiring state citizenship, does not explicitly require U.S. citizenship in its juror qualification statute, (34) but, under the common law, status as a non-citizen is a disqualification for jury service. (35) Additionally, federal statute forbids persons who are not citizens of the United States from serving on district court juries. (36)

   Both non-citizens and citizens have challenged these state and federal statutes under the Fifth, Sixth, and Fourteenth Amendments. However, such challenges have been unsuccessful, and courts have repeatedly upheld the constitutionality of these statutes.

   First, courts have held that exclusions of non-citizens from jury service do not deny non-citizens equal protection. Non-citizens are entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment, (37) under which the Supreme Court held "classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny." (38) This strict scrutiny standard requires a state to show that a classification based on alienage satisfies a "compelling interest." (39) Under this standard the Court found that state statutes denying welfare benefits to non-citizens violate the Equal Protection Clause, (40) as do statutes requiring U.S. citizenship for registration as a licensed engineer. (41)

   However, after determining that classifications based on alienage are subject to strict scrutiny, the Court later retreated and found that under certain circumstances classifications based on alienage are only subject to the lesser rational basis standard of review. The exception became known as the "political function" exception, which "applies to laws that exclude aliens from positions intimately related to the process of democratic self-government." (42) The "political function" exception first took shape in Sugarman v. Dougall, (43) in which four resident aliens challenged the constitutionality of a state statute restricting competitive civil service positions to citizens. (44) The Court closely scrutinized the classification and held that it was unconstitutional. (45) However, the Court carefully limited its holding by stating that its scrutiny of classifications based on alienage will be less demanding when dealing with "matters resting firmly within a State's constitutional...